NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

(Serial No. 10/988,358) 

IN RE DAVID KRYZPOW, JAMES ELLIOTT, 

AARON ROOD, AND FREDERICK J. LISY

__________________________ 

2010-1209 

__________________________ 

Appeal from the United States Patent and Trademark 

Office, Board of Patent Appeals and Interferences. 

___________________________ 

Decided: December 20, 2010 

___________________________ 

BRIAN M. KOLKOWSKI, Orbital Research Inc., of Cleveland, Ohio, for appellants. 

RAYMOND T. CHEN, Solicitor, Office of the Solicitor, 

United States Patent and Trademark Office, of Alexandria, Virginia, argued for the Director of the United 

States Patent and Trademark Office. With him on the 

brief were FRANCES M. LYNCH and JANET A. GONGOLA, 

Associate Solicitors. 

__________________________ 
IN RE KRYZPOW 2

Before BRYSON, DYK, and MOORE, Circuit Judges. 

MOORE, Circuit Judge. 

David Kryzpow, James Elliott, Aaron Rood, and Frederick Lisy appeal the decision of the United States 

Patent and Trademark Office Board of Patent Appeals 

and Interferences (Board) concluding that claims 13-15 

and 23 of U.S. Application No. 10/988,358 (’358 application) would have been obvious over U.S. Patent No. 

6,415,619 (Kornrumpf) in view of U.S. Patent No. 

7,032,302 (Schmidt) and U.S. Patent No. 4,763,660 (Kroll) 

and concluding that claim 16 would have been obvious 

over Kornrumpf in view of Schmidt and Kroll and further 

in view of U.S. Patent No. 6,259,939 (Rogel). We affirm. 

BACKGROUND

The ’358 application concerns an electrode harness 

used for taking biopotential measurements. The specification states that in one embodiment, the electrical 

pathways of the harness are shielded from large defibrillator voltages and smaller voltages, both of which would 

degrade the biopotential signal. J.A. 140. 

The claims at issue all require an electrical pathway 

shielded from large defibrillator voltages. Claim 13 

recites: 

13. An electrode harness for physiological monitoring of a subject, the electrode harness comprising 

at least two dry electrodes; and 

material operable to interconnect the at least two 

dry electrodes, the material comprising an electri-
3 IN RE KRYZPOW

cal pathway from at least one of the at least two 

dry electrodes, the electrical pathway being electrically shielded from large defibrillator voltages; 

wherein the at least two dry electrodes are attached to the material. 

Claims 14-16, 19, and 23 all depend from claim 13. Claim 

16 requires that the electrode harness include “a wireless 

transmitter or transceiver, which is electrically connected 

to the at least two dry electrodes.” The other dependent 

claims add limitations not argued on appeal. 

The examiner rejected claims 13-15, 19, and 23 over 

Kornrumpf in view of Schmidt and Kroll, and claim 16 

further in view of Rogel. The examiner explained that 

Kornrumpf discloses a harness but does not disclose the 

use of dry electrodes or a shield layer. The examiner 

found that Schmidt disclosed the use of dry electrodes and 

stated that they could be used with a harness. J.A. 257-

58. The examiner thus concluded that it would have been 

obvious to modify Kornrumpf’s harness with Schmidt’s 

dry electrodes to permit signal detection without the use 

of conductive gels or adhesives. J.A. 258. The examiner 

further found that Kroll disclosed a shield layer on an 

electrode belt device and concluded that it would have 

been obvious to one of skill in the art to modify the Kornrumpf harness with the shield in Kroll to permit superior 

signal detection. Id. The examiner also found that Rogel 

disclosed a wireless transmitter and concluded that it 

would have been obvious to modify the Kornrumpf harness with such a feature. Id.

In response, the appellants argued that 
IN RE KRYZPOW 4

Kroll only teaches of a shielding layer that “prevents interference from the device with other 

medical and diagnostic and therapeutic devices.” 

Column 6 lines 19-20 . . . . Kroll does not teach or 

disclose an electrical pathway from the at least 

one electrode, the electrical pathway being 

shielded from large defibrillator voltages. Kroll 

only teaches of a shielding layer that “prevents interference”. The claimed invention not only prevents interference from other devices, it protects 

the patient from potentially harmful currents, and 

likewise the connected electronics. 

J.A. 269 (emphasis in original); see also J.A. 274. 

The examiner again rejected the claims, reiterating 

the same arguments. The examiner did not respond to 

the appellants’ argument presented above. Rather, the 

examiner stated: “Kornrumph et al fail to disclose a 

shield layer. Such a feature is disclosed by Kroll et al (see 

column 6, lines 17+, particularly lines 19-21).” J.A. 283. 

In response, the appellants asserted that: 

Further, Kroll only teaches a shielding layer that 

“prevents interference from the device with other 

medical diagnostic and therapeutic devices.” Column 6, lines 19-20. With respect to Claim 6, Kroll 

does not teach or disclose an electrical pathway 

from the at least one electrode, the electrical pathway being electrically shielded from large defibrillator voltages. Kroll only teaches of a shielding 

layer that “prevents interference.” Column 6, lines 

19-20. The claimed invention not only prevents interference from other devices, it protects the patient from potentially hazardous currents, and 
5 IN RE KRYZPOW

likewise protects the connected electronics. There 

is a large difference between electronic shielding 

for interference and electronic shielding of large 

defibrillator voltages, and a large difference for the 

type of structures required for such shielding. The 

Examiner has not yet explained why he believes 

that shielding for electronic interference and for 

large defibrillator voltages are the same nor provided a reference for disclosing such. 

J.A. 291 (emphasis removed); see also J.A. 299. 

The appellants filed a notice of appeal, and the examiner issued a “Supplemental” Office Action reiterating the 

previous rejection and further rejecting certain previously 

allowed claims. J.A. 306-15. 

Before the Board, the appellants asserted that “electric shielding for interference and electronic shielding of 

large defibrillator voltages are drastically different.” J.A. 

341. The appellants further argued that “the type of 

structures required for shielding against interference are 

different from the type of structures required for shielding 

against damage that can be caused by large voltages.” Id. 

After the parties exchanged briefing, the examiner filed a 

“Supplemental Examiner’s Answer.” J.A. 409-24. In this 

supplemental paper, the examiner for the first time 

stated that “the shield layer of Kroll et al would inherently offer at least some protection from the claimed 

[defibrillator] voltages.” J.A. 420. 

The Board affirmed the examiner’s rejection of claims 

13-16, 19, and 23 over Kornrumpf in view of Schmidt and 

Kroll, and, for claim 16, further in view of Rogel. The 

Board found that Kroll teaches a belt shielded from 

outside interference by a shielding layer. J.A. 18. The 
IN RE KRYZPOW 6

Board further found that “[a]lthough Kroll does not 

specifically state that the shielding layer is sufficient to 

shield the electrical pathways of the device from large 

defibrillator voltages (Fact 14), Kroll expressly suggests 

that the shielding layer can be modified in order to provide additional shielding (Fact 13).” Id. The Board found 

that the “[a]ppellants d[id] not identify any specific structure in the Specification or in the claims that specifically 

enables shielding from large defibrillator voltages.” Id. 

The Board concluded that “[s]electing an appropriate 

amount of shielding based upon the expected outside 

interference that the device may encounter is a detail of 

construction that does not patentably distinguish the 

invention from the prior art.” Id. The Board found that 

“Kroll itself suggests that incorporating more shielding 

layers will produce more shielding.” J.A. 18-19. As to 

claim 16, the Board applied the same reasoning and 

further concluded that “[i]incorporating Rogel’s wireless 

transmitter into the device of Kornrumpf amounts to 

using a known technique, to improve a known device, in 

order to achieve the predictable result of enabling cordless 

operation of the device and making it simpler to manufacture.” J.A. 20. 

The appellants appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). 

DISCUSSION

We review the Board’s ultimate determination of obviousness de novo and the Board’s underlying factual 

findings for substantial evidence. In re Kotzab, 217 F.3d 

1365, 1369 (Fed. Cir. 2000). 

The appellants argue that the Board erred in its obviousness determination by equating a shield that protects 
7 IN RE KRYZPOW

against interference with the claimed shield, which protects against large defibrillator voltages. The appellants 

further elaborate on the two types of shielding, explaining 

that “interference is shielded to improve the physiological 

signal quality or prevent noise in the signal.” Appl. Br. 

21. The appellants assert that equipment found in a 

medical environment, such as computers, monitors, and 

power lines, create interference. Id. at 22. The appellants assert that a skilled artisan would understand that 

“[d]efibrillators involve the discharge of direct current 

(DC) at high voltages across a patient to treat life threatening cardiac arrhythmias, ventricular fibrillation and 

pulseless ventricular tachycardia. Thus, direct current is 

not a source of interference.” Id. The appellants assert 

that the Board erred by not defining the level of skill in 

the art or taking the skilled artisan’s knowledge of this 

type of information into account. 

The appellants also argue that Kroll’s shield would 

not protect against large defibrillator voltages, even if 

additional layers were added. The appellants explain 

that Kroll’s shield is located in one of the outermost layers 

of the harness. The appellants assert that Kroll does not 

teach or suggest providing a shield between the electrical 

pathways and the patient; rather, the shield of Kroll 

protects the device and its electrical pathways from 

outside (external) interference sources. The appellants 

thus contend that Kroll’s shield does not protect the 

electrical pathways against any voltages passed through 

the patient’s body and leaked into the harness through 

contact with the patient’s skin. By contrast, the appellants explain that their specification describes an embodiment in which the electrical pathways are shielded 

from large defibrillator voltages. In this embodiment, the 

electrical pathways “are longitudinally enclosed with a 

conductive layer of shielding, such as metal or foil, ex-
IN RE KRYZPOW 8

tending from the electrode connector to the output plug at 

the opposite end of the harness. Each individual electrical pathway is shielded.” J.A. 140. 

The government responds that “[t]he fact that Kroll’s 

specific embodiments only depict shielding on one side of 

the harness is of no moment.” Gov’t Br. 15. The government asserts that based on an understanding of interference and direct currents, the appellants’ skilled artisan 

“surely would know exactly where and how to shield.” Id. 

The government further asserts that Kroll’s shield is 

capable of protecting against large defibrillator voltages. 

The government explains that the shield described in the 

’358 application is made of metal, and the appellants 

acknowledge that the shield in the ’358 application protects against large defibrillator voltages. The government 

thus argues that “there is more than a reasonable basis to 

conclude that Kroll’s shielding layers are capable of full or 

partial shielding from large defibrillator voltages because 

they, too, are metallic.” Gov’t Br. 16. Next, the government asserts that the Board did not base its decision on a 

finding that Kroll’s shield inherently protected against 

large defibrillator voltages. Rather, according to the 

government, the Board relied on Kroll’s express disclosure 

that “the shielding layer can be modified in order to 

provide additional shielding.” Gov’t Br. 17.1

We conclude that the Board did not err when it determined that the asserted references rendered these 

claims obvious. All of the claims at issue require an 

electrical pathway that is “electrically shielded from large 

defibrillator voltages.” Giving this claim term its broad-

 1 The government also argues that appellants 

waived their arguments regarding the structure of the 

shield. Given our discussion below, we do not reach the 

waiver argument. 
9 IN RE KRYZPOW

est reasonable interpretation, it could apply to shielding 

on either side of the pathway. Kroll discloses a top-side 

shield that may be modified for additional shielding. 

Given this construction and the teachings of the references, we conclude that the Board did not err by determining that these claims would have been obvious over 

the cited references. 

Although we affirm the Board’s rejection of the claims 

on appeal, there are claims in this case that remain 

pending at the Patent Office. The applicant may amend 

pending claims or submit new claims to clarify that this 

shielding is disposed between the patient’s body and the 

pathway, rather than on top of the pathway as in Kroll. 

We express no opinion about the allowability of these 

potentially amended claims and the Patent Office should 

consider them in the first instance. 

CONCLUSION

For the foregoing reasons, we affirm. 

AFFIRMED